C2001/4541, Transcript of Proceedings [2001] AIRCTrans 2474 (24 September 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 0095

A 11.9.01

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2001/4541

COMMUNICATIONS, ELECTRICAL, ELECTRONIC,
ENERGY, INFORMATION, POSTAL, PLUMBING
AND ALLIED SERVICES UNION OF AUSTRALIA

and

CABLE AND WIRELESS OPTUS LIMITED

Notification pursuant to section 99 of
the Act concerning procedures for
settling disputes

MELBOURNE

9.00 AM, WEDNESDAY, 5 SEPTEMBER 2001

Continued from 31.8.01

PN185

MS M. WILLIAMSON: I appear on behalf of the CEPU Communications Division with MR J. ELLERY and J CAIN and I have our member and Optus staff member, MR M. ABSOLOM here with me.

PN186

MR N. DRAPER: I seek leave to appear for Optus in this matter. I have with me Mr C. WILSON and MS B. GLEESON from Optus.

PN187

THE SENIOR DEPUTY PRESIDENT: Is there any objection to Mr Draper's appearance?

PN188

MS WILLIAMSON: No, your Honour.

PN189

THE SENIOR DEPUTY PRESIDENT: Leave is granted, Mr Draper.

PN190

MR DRAPER: Thank you.

PN191

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Williamson.

PN192

MS WILLIAMSON: Your Honour, at the outset I would like to thank you for bringing this matter on so quickly and rearranging your diary to do so. The background - - -

PN193

THE SENIOR DEPUTY PRESIDENT: I was told that it was urgent.

PN194

MS WILLIAMSON: Yes, it is.

PN195

THE SENIOR DEPUTY PRESIDENT: I assume it is.

PN196

MS WILLIAMSON: Thank you. The background to our being here this morning is that on 21 August the CEPU lodged a dispute notification with the AIRC relating to dispute settling procedures and at what stage of the dispute and grievance appendix B to the enterprise partnership agreement, the union is able to attend meetings, represent its members upon being requested to do so by its members. As some background, your Honour, on 22 August the company wrote to the union stating that there was no dispute. The CEPU responded to that letter that we would be pleased to resolve matters between the union and the company.

PN197

In that letter we pointed out to the company that for some time we had been seeking to represent numbers of our members in relation to numbers of issues. There had been extensive correspondence relating to Mr Absolom's issues. On that day, 22 August, Mark Absolom attended on his own to yet a further meeting - - -

PN198

THE SENIOR DEPUTY PRESIDENT: On what day again was that, sorry?

PN199

MS WILLIAMSON: On 22 August Mark Absolom attended a further meeting with his two up manager and a HR representative attempting to further negotiate with his managers the fact that he believed he had been dealt with unfairly by not receiving a bonus payment, for not receiving a skill based payment in relation to training he had undertaken, and what he believed as some confusion over the CPI increase to his pay. On 29 August Mark advised the union that allegations had been made against him by his management that he had dumped a number of items of Optus communications equipment into a dump-master as the Optus Preston Depot on the 22nd, that he was alleged to have committed this act.

PN200

The Optus Preston Depot by the way, your Honour, is in full view of the depot. On last Friday, 31 August, we all appeared before your Honour. Following that hearing Optus management raised with Mr Blackburn of the CEPU that they had concerns relating to Mr Absolom. On Monday, the 3rd, Mr Absolom was directed to attend a meeting with Optus management at Preston and told that he could bring Mr Blackburn with him. That meeting was held yesterday, your Honour, and at that meeting Mr Absolom was advised that he was stood down pending dismissal and granted 24 hours in which to consider any further information he might wish to raise.

PN201

Your Honour, Mr Absolom has constantly denied the allegations. The company claims that Mr Absolom deliberately withheld a number of items from a pick-up by a contract storeman on 21 August, and brought those items with him all the way to Preston from the other side of the city where he works in the Ringwood area and then dumped them in the dump-master at Optus Depot, following the meeting on the 22nd which discussed his pay issues. Your Honour, it is not the union that makes a connection between the trouble Mr Absolom is now in and the CEPU endeavours to represent his issues in correspondence, at meetings and finally having to bring the dispute notification before yourself last week.

PN202

It is not the union that makes that connection, it is Cable and Wireless Optus because, your Honour, at yesterday's meeting Mr Absolom was advised that he had deliberately withheld certain items recovered from customer's premises from a stores delivery and pick-up made to him on 21 August, that he had signed a manifest for the contract storeman, that he had not handed over recovered items, but has, as I stated earlier, kept them back to throw in a dump-master on the other side of Melbourne the next day.

PN203

Optus stated at yesterday's meeting that Mr Absolom had a motive for committing this act and that he was acting maliciously to injure the company because the company had failed to address his issues of pay, and that was the statement of the company yesterday. This begs the question, your Honour, of why this young man would throw items to the value of $1500 into a dump-master as depot the other side of Melbourne where he could have been caught, because the dump-masters are in fall view of everybody who works at that depot, and why he would throw these items into a dump-master on his employer's premises.

PN204

Had Mr Absolom wished to injure the company by disposing of the said items he could have done so at any time after recovering the items from the customer, and on 22 August, following the abortive meeting, he could have dumped the items in any number of dump-masters between Preston and Ringwood, Ringwood and Mulgrave, and his home in Keysborough. This young man is not a silly young man so why would he risk six and a half years of employment by dumping the said items on Optus' own premises? Mr Absolom advises that the stores manifest showed to him at yesterday's meeting contains a signature purported by the company to be his, which he emphatically states that it is not his writing on that manifesto.

PN205

Mr Absolom further advises that technicians do not in fact sign manifestos for stores picked up or recovered goods with the stores contractor. This is a fact which has been corroborated by many of his colleagues and yesterday Mr Blackburn and Mr Cain from the union actually spoke to many of Mark's colleagues and they corroborated the fact that there is no manifesto signed by the technician for the contract stores person. Mr Absolom quoted the items recovered in a computerised report immediately following each recovery.

PN206

So, your Honour, upon doing each job the technician's task, and one that he follows by company policy, is to immediately store in the computer the actual serial numbers and his ID. They go into the computer. This report is an essential part of the Optus process, so that is why his ID and the stated serial numbers of the equipment are there. Therefore, knowledge of recovered equipment is immediately available to anybody who can access the field staff computer information. And not only is the task shown as completed - and this is the only method that the technicians have of showing that they have actually completed the task, by logging this into their computer.

PN207

But it is an essential task also because it goes towards the key performance indicators which are collected each day on each technician. So each technician each day has a performance level to adhere to and has to record the information on the computer so that the computer can keep a record of that performance indicator. Your Honour, the other issue here is that the serial item numbers on the items collected are removable. They are stickers, they can be taken off at any time. They can be taken off and put on other items. So why would Mr Absolom place himself at such risk by leaving the serial items on there, he could have taken them off.

PN208

Mr Absolom has worked in the stores area so he understands that he could have done that. So he is not likely to place himself at risk by leaving the serial items on. I raise these issues, your Honour, because Mr Absolom queries why it took till two days before our hearing last week to raise the allegations with him, which was a full week following the alleged time when he dumped the items. If the company viewed that this was such a serious matter why too did they roster Mr Absolom for work for eight hours on Saturday and eight hours on Sunday.

PN209

If he was such an untrustworthy person and acting in such a malicious manner to injure the company, why would they roster him for duty two days before they then dismissed him, or notify him that he was to be dismissed. Mr Absolom has come here today because he feels strongly that he has been accused falsely and he is here before you because he is prepared to tell you this in his own words. We are raising this because despite the responses of the company's representatives, and I can hear some mumblings over there, we believe that the matters are not coincidental and are related, and are, therefore, an escalation of the matters we raised last week.

PN210

We don't have much time, your Honour, but if we did I would be able to explain to you that Mr Absolom has been with the company since its second intake of technicians, so he is one of the really early employees of the company. He has been there six and a half years. With the exception of the last two years, where he has had a lot of sick leave due to his injuries, and the fact that he had to have surgery, serious surgery for knee reconstructions, he has in fact had a number of bonus payments in relation to his employment, which means that he has been able to keep up with the KPI levels that have been set.

PN211

And we have got some evidence here that actually shows that from time to time he actually goes way past the KPI levels and in fact on Optus' own accounting to Mr Absolom at one of his recent meetings - probably the meeting of the 22nd - they have stated to him that he has actually had bonus payments of around $8000 on top of his pay over periods of this last six and half years. And bearing in mind that he has had two years with no bonuses, because he hasn't been paid bonuses because of his injuries, that is a lot of money.

PN212

In fact he has had such an excellent adherence with his performance indicators that within the last three months - and he has also undertaken training - in the last three months he has been upgraded from a level 9 to a level 10 and that is in the last three months. So this is hardly the actions of a young man who bears such a grudge to the company that he would want to injure it by throwing out valuable equipment. We contend, your Honour, therefore, that the matter is an escalation of the matters which were brought before you.

PN213

Mr Absolom is being punished for being an integral part of the matters that we raised. He has no motive to be malicious and in fact his only motive is to have his pay reinstated to him and the bonuses reinstated which he believes that he is owed. So he doesn't have a motive to act maliciously towards the company. Your Honour, we seek from you to have these matters, which are pressing against Mr Absolom - in fact there is a two o'clock meeting today which we believe he will be dismissed at that meeting, and we believe that these matters are all linked together and we would request and seek that Optus does not take this action to dismiss him at this stage.

PN214

THE SENIOR DEPUTY PRESIDENT: Thanks, Ms Williamson. Mr Draper.

PN215

MR DRAPER: Thank you, your Honour. Could I firstly note, your Honour, that there had in fact been a meeting scheduled with Mr Absolom at 8.00 am this morning and Optus chose without prejudice to its own position to delay that meeting until later today in light of these proceedings. But I do stress that that is completely without prejudice to the company's position. Your Honour, the matter that has been raised by the CEPU today is totally separate to Mr Absolom's grievance under the EBA which was raised by Mr Blackburn last week and to which Ms Williamson has referred today.

PN216

That grievance is where it was last Friday. It is still at stage 2 of the EBA process and it is mischievous, we say, of the CEPU to suggest any motive on Optus' part in relation to that grievance in the current matter. The references you may recall last week, your Honour, were made to other matters having arisen. They were fairly oblique references admittedly, but other matters having arisen, was referred to in discussions before the Commission in relation to Mr Absolom, and those matters are the matters to which Ms Williamson has largely turned her attention this morning.

PN217

The matter now being referred to is in fact that matter - that other matter. It is nothing more than a matter of misconduct potentially involving dismissal, or termination of employment, and we say it is not an industrial dispute. If indeed there is a termination which occurs Mr Absolom would have full rights available to him under the Workplace Relations Act in respect of his termination - in respect of its termination employment provisions and would not be restrained in any way from bringing those forward. The allegations that were raised by Mr Absolom were raised on the 29th and meetings occurred with him on that day.

PN218

There was some delay involved between the 22nd, when I understand the materials were found, to the 29th, largely because of the absence of the team leader on sick leave for a period. In respect of Mr Absolom continuing to work over the weekend, that is simply a product of the fact that in discussions of the 29th Mr Absolom gave information which required the company to undertake further investigation and it wasn't until that further investigation was completed over the weekend, and on Monday morning before the latest meeting, the meeting which occurred yesterday, was able to take place.

PN219

On that basis, your Honour, we say that the Commission should allow Optus to proceed in accordance with its standard management prerogatives, and in exercising that prerogative the company is well aware that it may have to justify its actions under the termination of employment provisions of the Workplace Relations Act at some future time. But we say simply that the evidence on this matter of misconduct is such that on the balance of probabilities as assessed by Optus, that Mr Absolom did engage in that misconduct and in that situation it is open to Optus to terminate his employment and it is not a matter which the Commission could or should interfere with.

PN220

Just in relation to the particular items it is common ground that those items were in Mr Absolom's possession on 21 August. Mr Absolom was at the Preston office on the morning of the 22nd for a 7.30 am meeting and it was some time after that meeting had concluded that these items were found in the dump-master. There is no paperwork to suggest that the items were collected via the normal mobile stores processes from Mr Absolom, and indeed, the mobile stores person who was involved denies absolutely that he collected such items and indicates that he would not have collected such items without the appropriate paperwork.

PN221

That mobile stores person also has confirmed to Optus that he does not normally work out of into Preston and did not attend Preston on either of the days, Tuesday, the 21st or Wednesday, the 22nd. Mr Absolom was unable to recall any details of his meeting with the mobile stores person on the 21st of the 8th. He couldn't recall specifically where he had met or the approximate time, but he did say that he did not lodge an order form with the stores person but simply provided him with some rubbish. In fact Mr Absolom did lodge an order form on that day and the mobile stores person is quite certain of his account of the day and his activities and involvement with Mr Absolom.

PN222

He has a clear recollection of that meeting and its detail and categorically states that he did not collect the relevant items from Mr Absolom.

PN223

THE SENIOR DEPUTY PRESIDENT: I don't understand the significance of that. I am not clear on that.

PN224

MR DRAPER: What I am simply saying, your Honour, is that the mobile stores person has categorically said that he did not collect the items from Mr Absolom. Mr Absolom says categorically that he gave the items to the stores person and, therefore, they left his charge on the 21st. We are simply saying that the mobile stores person, on his evidence, certainly did not collect, nor did he attend Preston on either of those days, to allow him, if that is the suggestion, that he put the items in the bins. We say - - -

PN225

THE SENIOR DEPUTY PRESIDENT: What were the items?

PN226

MR DRAPER: They were one telephone and particularly two customer access units, which I understand are referred to as CAUS, C-A-U-S. They have a value of approximately 1200 items and they were recovered from customer's premises - I assume customers who cancelled services.

PN227

THE SENIOR DEPUTY PRESIDENT: Are they of use to Optus?

PN228

MR DRAPER: They would be reusable, your Honour, yes, and that would be the standard process and even if they weren't - on my instructions even if they were faulty the stores process would see them return for testing and review as to whether or not they were repairable. We say there is clearly a motive on Mr Absolom's behalf. The matter is one that should be left with the company to make its decisions. We - - -

PN229

THE SENIOR DEPUTY PRESIDENT: What is the motive, Mr Draper?

PN230

MR DRAPER: The motive is perhaps that Mr Absolom had a strong grievance against the company in respect of his claims in relation to salary, and he chose after the meeting - at or after the meeting on the 22nd to dispose of the items when he was at Preston.

PN231

THE SENIOR DEPUTY PRESIDENT: Instead of giving them to the stores person?

PN232

MR DRAPER: Instead of giving them, as he claims to have done, giving them to the store the day before.

PN233

THE SENIOR DEPUTY PRESIDENT: Where should he have given?

PN234

MR DRAPER: If, as he had said, they were given to the storeman, there would have been paperwork to support that. The storeman would have returned them to Bayswater, which is where the storeman normally works from and - - -

PN235

THE SENIOR DEPUTY PRESIDENT: Where would Mr Absolom have given them to the storeman?

PN236

MR DRAPER: He would have met him in the field somewhere, at a particular location, and at a time that they had agreed. And I understand that the meeting occurred before Mr Absolom made contact with the mobile stores person because he wanted to lodge an order form for other equipment. I might just make a very brief comment, your Honour, also in relation to Mr Absolom's history with the company. I am not in a position to make comments beyond the last 18 months or so, but certainly there have been elements of Mr Absolom's performance and conduct which have bene less than satisfactory, so much so that in January of this year he was the subject of a formal warning, which did indicate to him that repeated behaviour of a similar sort could lead to termination of his employment, and that that particular circumstance, amongst other things, involved the misuses of a company vehicle and Mr Absolom's false claims that he had not misused the vehicle.

PN237

He eventually admitted in fact that he had misused it and indicated that he had earlier denied it simply to cover his butt, and they are his words as I am instructed, your Honour.

PN238

THE SENIOR DEPUTY PRESIDENT: Can you just elaborate on why you say that the Commission has no jurisdiction to deal with this matter?

PN239

MR DRAPER: Well, what we would say, Commissioner, is that the matter of termination of his employment is one purely for the company. It is a fundamental management prerogative to decide whether or not the termination should occur or whether employment should continue, and that the Commission should not involve itself in that process in respect of an industrial dispute. The allowable matters in section 89A are restricted and we say that it is the right of the company to take a reasonable decision, based on the balance of probabilities in this case as it assesses them, and take that decision in the knowledge that at the end of the day the Workplace Relations Act does provide a vehicle for Mr Absolom to challenge that decision. If the Commission pleases.

PN240

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Draper. Ms Williamson, do you want to say anything in reply?

PN241

MS WILLIAMSON: Your Honour, we still contend that the issues are not a coincidence and that they are linked. In relation to the issues that have occurred in January, Mark advises me that he doesn't agree with the story that has been raised by the company in relation to his performance and a previous warning in January. He believes that - I understand that there was a misunderstanding between himself and a team leader about where he was to meet the team leader and that he actually remained in his car in an Optus car park waiting for his team leader, and that he had attempted to contact the team leader by mobile phone and the team leader's mobile phone wasn't on, and that he remained in the car park until the team leader arrived.

PN242

So he disagrees with the substance that has been raised by my colleagues over the other side of the room. And, your Honour, we do believe that because the items are linked - because the issues are linked, that there is a genuine dispute with the company and that we believe that Mr - - -

PN243

THE SENIOR DEPUTY PRESIDENT: Well, can you identify the dispute?

PN244

MS WILLIAMSON: No, your Honour. We sought leave on the basis that is an escalation of the matter that we had here before you last week, that we believe that the matter is being escalated because Mr Absolom was such an integral part of our case last week.

PN245

THE SENIOR DEPUTY PRESIDENT: But your case last week was to be involved in dispute settling procedures in accordance with appendix B of the people agreement.

PN246

MS WILLIAMSON: Yes, your Honour, that is true, but in - - -

PN247

THE SENIOR DEPUTY PRESIDENT: And that appendix relates to disputes about matters arising under the agreement between Optus and its employees. The matter of termination of employment for alleged misconduct, how do you say that arises under the agreement?

PN248

MS WILLIAMSON: Your Honour, what we are seeking leave to say is that prior to coming to that hearing last week which, yes, was about the interpretation of the disputes procedure and when the union could be involved, that we had in fact exchanged extensive correspondence with the company about Mr Absolom. It was well known to the company that Mr Absolom was somebody that was drawing the attention of the union. When we appeared before you last week Mr Absolom was one of those people. And in fact I suppose it is fair to say that he and the other fellow mentioned, that had in fact generated the most exchange of correspondence.

PN249

So the company was well aware that Mr Absolom had been seeking advice from the union, representation from the union. And on that basis we believe that there is an element of Mr Absolom being injured in his employment, because he has not only raised issues relating to his pay but that he has agreed to become a part of the case that the union put to you last week, and that consequently he is being punished, and we contend that the company has raised the stakes in this issue - in the issue that we raised with you last week.

PN250

THE SENIOR DEPUTY PRESIDENT: Well, that is a breach of the Act and a matter for the Federal Court if he is being victimised.

PN251

MS WILLIAMSON: Yes.

PN252

THE SENIOR DEPUTY PRESIDENT: I understand what you have said. I have a 9.30 matter which won't take long. I would ask the parties to stay within the vicinity of the hearing room and I will call this matter back on after I have dealt with the application to certify an agreement at 9.30. Would you mind doing that? I will adjourn temporarily.

PN253

MR DRAPER: Your Honour, could I just say that Mr Wilson does have a significant medical appointment he has been waiting for for some considerable time at 10.00 am and it is out at Box Hill. I just wonder whether you would be satisfied if he is not in attendance for the next hour or so?

PN254

THE SENIOR DEPUTY PRESIDENT: Yes, that is a matter for you, Mr Draper.

PN255

MR DRAPER: Thank you.

NO FURTHER PROCEEDINGS RECORDED